Torture in the Eyes of the Beholder: the Psychological Difficulty of Defining Torture in Law and Policy*
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Torture in the Eyes of the Beholder: The Psychological Difficulty of Defining Torture in Law and Policy* Mary-Hunter Morris McDonnell** Loran F. Nordgren*** George Loewenstein**** ABSTRACT This Article draws upon recent social psychological research to demonstrate the psychological difficulty of distinguishing between torture and enhanced interrogation. We critique the accuracy of evaluations made under the current torture standard using two constructs—reliability and validity—that are employed in the social sciences to assess the quality of a construct or metric. We argue that evaluations of interrogation tactics using the current standard are both unreliable and invalid. We first argue that the torture standard is unreliable because of the marked variation in the manner in which different jurisdictions interpret and employ it. Next, we draw on recent social psychological research to demonstrate the standard’s invalidity. We identify the existence of two separate systematic psychological biases that impede objective application of the torture standard. First, the self-serving bias—a bias that motivates evaluators to interpret facts or rules in a way that suits their interests—leads administrators to promote narrower interpretations of torture when faced with a * The authors would like to especially thank Martha Minow, Sam Issacharoff, David Cole, and Cindy Estlund for their helpful comments on an earlier draft. ** Mary-Hunter Morris McDonnell is a Ph.D. candidate in Management and Organizations at Northwestern University’s Kellogg School of Management. She is concurrently in her final year of J.D. studies at Harvard Law School. *** Loran Nordgren is an assistant professor of the Management and Organizations at the Kellogg School of Management. He received the Theoretical Innovation Award from the Society of Personality and Social Psychology for his research on judgment and decision making. **** George Loewenstein is the Herbert A. Simon Professor of Economics and Psychology at Carnegie Mellon University. He is one of the founders of the field of behavioral economics and an expert on the role of emotions in economic behavior. 87 88 Vanderbilt Journal of Transnational Law [Vol. 44:87 perceived threat to their own, as compared with other nations’, security. Thus, the threshold for torture is tendentiously raised during exactly the periods of time when torture is most likely to be used. Second, our own research on the hot–cold empathy gap suggests that an assessment of an interrogation tactic’s severity is influenced by the momentary visceral state of the evaluator. People who are not currently experiencing a visceral state—such as pain, hunger, or fear—tend to systematically underestimate the severity of the visceral state. We argue that, because the people who evaluate interrogation tactics are unlikely to be in the visceral state induced by the tactic when making their evaluations, the hot–cold empathy gap results in systematic underestimation of the severity of tactics. Therefore, the hot– cold empathy gap leads to the application of an underinclusive conception of “torture” in domestic interrogation policy and international torture law. TABLE OF CONTENTS INTRODUCTION .......................................................... 89 PART I: THE UNRELIABILITY OF THE TORTURE STANDARD: A COMPARATIVE REVIEW OF TORTURE LAW .............. 95 PART II: THE INVALIDITY OF THE TORTURE STANDARD: SYSTEMATIC PSYCHOLOGICAL BIASES AFFECTING EVALUATIONS OF INTERROGATION TACTICS ................................................................... 103 A. Self-Serving Biases and Motivated Inference in Evaluations of Interrogation Tactics ........................................................... 104 B. The Hot-to-Cold Empathy Bias in Evaluations of Interrogation Tactics ........... 109 PART III: HONING CLOSE OR STEERING CLEAR: THE IMPORTANCE OF A BRIGHT LINE IN REFERENCE TO A PROHIBITION .................................................... 117 PART IV: CONCLUSION ............................................................ 120 2011] TORTURE IN THE EYES OF THE BEHOLDER 89 INTRODUCTION [Torture] presupposes, it requires, it craves the abrogation of our capacity to imagine others’ suffering, dehumanizing them so much that their pain is not our pain . [It places] the victim outside and beyond any form of compassion or empathy, but also demands of everyone else the same distancing, the same numbness . –Ariel Dorfman1 Whatever the realities of current practice, states have formed a remarkable consensus regarding the unacceptability of employing torture to procure information from political detainees.2 Torture is unconditionally banned by a wide range of international treaties, 1. Ariel Dorfman, Forward: The Tyranny of Terror: Is Torture Inevitable in Our Century and Beyond?, in TORTURE: A COLLECTION 8 (Sanford Levinson ed., 2004). 2. See, e.g., Al-Adsani v. United Kingdom, 2001–XI Eur. Ct. H.R. 79, ¶ 59 (“[I]t has long been recognised that the right . not to be subjected to torture . enshrines one of the fundamental values of democratic society. It is an absolute right, permitting of no exception in any circumstances.”); Prosecutor v. Furundzija, Case No. IT–95–17/1, Trial Chamber Judgment, ¶ 144 (Int’l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998). It should be noted that the prohibition of torture laid down in human rights treaties enshrines an absolute right, which can never be derogated from, not even in time of emergency. This is linked to the fact . that the prohibition on torture is a peremptory norm or jus cogens. Furundzija, Case No. IT–95–17/1, at ¶ 144 (emphasis added). All International Criminal Tribunal for the former Yugoslavia (ICTY) cases are made publicly available at http://www.icty.org. See also CHRIS INGELSE, THE UN COMMITTEE AGAINST TORTURE: AN ASSESSMENT 4 (2001) (evidencing the ubiquity of provisions prohibiting torture by reference to a myriad of international covenants and declarations including the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights and Fundamental Freedoms (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and Peoples’ Rights); Suzanne M. Bernard, An Eye for an Eye: The Current Status of International Law on the Humane Treatment of Prisoners, 25 RUTGERS L.J. 759, 789 (1994) (noting that the torture prohibition appears in more than sixty-five countries’ national constitutions); Erika de Wet, The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law, 15 EUR. J. INT’L L. 97 (2004) (providing a general academic discussion of the universality of the torture prohibition warranting its elevation to the status of jus cogens). The Convention’s definition of torture is regularly claimed as the most universally accepted definition of torture. See, e.g., GAIL H. MILLER, DEFINING TORTURE 6 (2005); BETH VAN SCHAACK & RONALD C. SLYE, INTERNATIONAL CRIMINAL LAW AND ITS ENFORCEMENT: CASES AND MATERIALS 499 (2007); Kenneth Lasson, Torture, Truth Serum, and Ticking Bombs: Toward a Pragmatic Perspective on Coercive Interrogation, 39 LOY. U. CHI. L.J. 329, 334 (2008). As such, the Convention’s definition will be assumed the authoritative legal definition of torture throughout this Article. 90 Vanderbilt Journal of Transnational Law [Vol. 44:87 including the United Nations Convention against Torture (CAT),3 the International Covenant on Civil and Political Rights,4 and the four Geneva Conventions.5 Rather than admitting any intentional decision to torture detainees, countries responding to a charge of torture typically mount one of three standard defenses: (1) denial that the claimed acts occurred; (2) denial of personal responsibility, e.g., claiming that the torture was carried out by “rogue” subordinates; or (3) denial that the relevant interrogation techniques constitute torture. The fact that individuals and nations rarely, if ever, acknowledge that they committed torture underlines the sacrosanctity with which the prohibition of torture is generally regarded. Torture is to nations, however, what adultery is to politicians— an act that is both condemned and committed with numbing frequency. Like adultery, torture often occurs in the heat of the moment, when a nation feels acutely threatened. Also like adultery, as exemplified by President Clinton’s denial that he had “sex” with Monica Lewinsky, there is often much greater agreement about the unacceptability of the act than about how, exactly, the act should be defined. The problem is perfectly illustrated by the controversy surrounding the interrogation tactics employed by the United States in CIA secret prisons,6 including waterboarding, forced abstention 3. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2, Dec. 10, 1984, S. TREATY DOC. No. 100–20 (1988), 1465 U.N.T.S. 85 [hereinafter CAT]. 4. International Covenant on Civil and Political Rights, arts. 4, 7, Dec. 16, 1966, S. EXEC. DOC. NO. E, 95–2 (1978), 999 U.N.T.S. 171 [hereinafter ICCPR] (providing in Article 7 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,” with an accompanying non-derogation clause in Article 4). 5. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 3, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked